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Federal Judge Flubs an Op-Ed He Probably Shouldn't Have Written in the First Place

In a Washington Post op-ed today, Fourth Circuit Senior Judge J. Harvie Wilkinson III dismissed the idea of 18-year Supreme Court term limits out of hand, saying it’d “invite further and more dangerous tinkering and alteration of the court’s structure in years to come.”

That’s a stretch. No wonder the judge didn’t bother trying to back up this assertion. (He closed with it.)

The problem here is two-fold. First, Wilkinson’s essay ignores entirely how term limits might be applied.

The most likely path to implementation would bestow “senior status” to future justices after 18 years of high court service. In other words, they’d remain life-tenured members of the judiciary, per what the Constitution requires, but, as many justices have done in their later years, they’d serve out their days part-time on lower federal courts.

Senior status was not provided by the Founders but, rather, is a 20th century congressional creation.

As a senior judge himself, Wilkinson should know plenty about this history and today’s parallels.

Second, Wilkinson should also know that federal judges are generally not supposed to articulate support or opposition in contested policy questions.

An oft-quoted judicial ethics opinion states a judge may weigh in “only to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area at issue.”

By neglecting how implementation proposals obviate his other concerns, Wilkinson indicates he is no subject matter expert.

As a federal judge, he should not be advocating for either side of the issue in the first place.

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